US v. Tayari Rafiki Mitchell

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to file supplemental brief(s) [1000002005-2] Originating case number: 1:11-cr-00174-CCE-1 Copies to all parties and the district court/agency. [1000020654].. [16-4275]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4275

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TAYARI RAFIKI MITCHELL,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:11-cr-00174-CCE-1)

Submitted:

January 30, 2017

Decided:

February 9, 2017

Before AGEE and WYNN, Circuit Judges, and DAVIS, Senior Circuit
Judge.

Affirmed by unpublished per curiam opinion.

Stacey D. Rubain, QUANDER & RUBAIN, Winston-Salem, North
Carolina, for Appellant.
Ripley Rand, United States Attorney,
Angela H. Miller, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In 2011, Tayari Rafiki Mitchell pled guilty to possession
of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1),
and

possession

with

intent

to

distribute

cocaine

violation of 21 U.S.C. § 841(a)(1), (b)(1)(B).

base,

in

The district

court sentenced him as an armed career criminal pursuant to 18
U.S.C.

§ 924(e),

and

as

a

career

offender

Sentencing Guidelines Manual § 4B1.1.

pursuant

to

U.S.

In 2012, Mitchell filed a

motion to vacate, set aside, or correct his sentence under 28
U.S.C. § 2255.
after

the

The district court granted Mitchell’s motion

Government

conceded

that

Mitchell

should

be

resentenced because he no longer qualified as an armed career
criminal.
Mitchell

However,
still

on

merited

resentencing
the

career

the

court

offender

imposed a prison sentence of 160 months.

found

that

enhancement

and

On appeal, Mitchell

challenges the court’s career offender determination.
We review de novo a district court’s determination that a
prior state conviction qualifies as a career offender predicate.
United States v. Jones, 667 F.3d 477, 482 (4th Cir. 2012).

A

defendant is a career offender if (1) he was at least eighteen
years

old

when

the

instant

offense

was

committed,

(2)

the

instant offense is a felony and is either a crime of violence or
a controlled substance offense, and (3) he has at least two
prior felony convictions for crimes of violence or controlled
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substance offenses.

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See U.S.S.G. § 4B1.1(a) (2015).

The third

requirement is satisfied where “(1) the defendant has previously
sustained at least two felony convictions of either a crime of
violence

or

sentences

a

for

controlled
at

least

substance
two

of

the

convictions are counted separately.”
720

F.3d

215,

217

(4th

Cir.

offense;

2013)

and

(2)

aforementioned

the

felony

United States v. Davis,
(internal

quotation

marks

omitted); see U.S.S.G. § 4B1.2(c).
In his counseled brief, Mitchell concedes that one of his
prior convictions — North Carolina felony assault with a deadly
weapon

with

constitutes

intent
a

to

career

kill

inflicting

offender

serious

predicate,

but

injury

disputes

—
the

district court’s finding that his prior conviction for North
Carolina

felony

possession

with

intent

to

sell

(“PWISD”) cocaine also qualifies as a predicate.
Mitchell

contends

that

a

sentence

was

never

and

deliver

Specifically,

imposed

for

his

PWISD cocaine conviction, and, therefore, it cannot be counted
as a prior conviction for a controlled substance offense.
Mitchell’s

PWISD

cocaine

conviction

was

consolidated

for

judgment with several other convictions, the most serious of
which was a conviction for cocaine trafficking that carried a

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maximum penalty of 15 years’ imprisonment. 1

Because the maximum

sentence for a PWISD cocaine conviction was 10 years, Mitchell
asserts that his sentence of 12 years must have been imposed
only as to the cocaine trafficking conviction.
In support of his argument, Mitchell seeks to expand the
holding of United States v. Davis, in which we found that a
consolidated

sentence

under

the

North

Carolina

Structured

Sentencing Act results in a single sentence that may serve only
as one sentence for purposes of determining whether a defendant
is a career offender.

720 F.3d at 218-20.

Mitchell, however,

was sentenced before the October 1, 1994 effective date of the
Structured Sentencing Act’s “consolidated sentence” provision,
N.C. Gen. Stat. § 15A-1340.15.
sentence,

North

separate

sentences

Davis,

720

F.3d

Carolina
in
at

At the time of Mitchell’s state

defendants

offenses
219.

like

“consolidated

Moreover,

a

Mitchell
for

sentence

received

sentencing.”
imposed

on

convictions consolidated for judgment was based not only on the
maximum sentence for the most serious crime of conviction, but
also

on

the

convictions.

presumptive
N.C.

sentences

Gen.

Stat.

1

assigned

to

each

§ 15A-1340.4(a)

of

the

(1988).

Because the Government has conceded that the state
conviction for cocaine trafficking is not a proper predicate
offense, we do not consider this as a potential career offender
predicate.

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Therefore,

we

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find

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Mitchell’s

reliance

on

unavailing. 2

Davis

Further, his reference to N.C. Gen. Stat. § 15A-1340.4(a) (1988)
does not rescue his argument.
As the district court noted, it appears from the face of
the

judgment

that

the

state

convictions listed therein.

sentence

was

imposed

as

to

all

Specifically, the state judgment

states that the court “Orders the above offenses be consolidated
for

judgment

and

the

Twelve (12) Years.”

defendant

be

imprisoned

that

sentence

this

sentence

resulting

from

conviction.

term

of

was

In addition, there is no

counted

Mitchell’s

separately

other

from

qualifying

the
prior

See U.S.S.G. § 4B1.2(c).

Accordingly,

we

affirm

Mitchell’s

judgment

request to file a pro se supplemental brief.
oral

a

None of the arguments advanced by Mitchell

renders this judgment any less clear.
doubt

for

argument

because

the

facts

2

and

legal

and

deny

his

We dispense with
contentions

are

We also note that, were Davis applicable to Mitchell’s
case, it would not save his claim.
Davis states that “where a
defendant receives a ‘consolidated sentence’ (or ‘consolidated
judgment’) under North Carolina law, it is one sentence and
absent
another
qualifying
sentence,
the
enhancement
is
inapplicable.”
720 F.3d at 219.
Here, the district court
counted Mitchell’s sentence for PWISD cocaine, which was
consolidated
for
judgment
with
his
cocaine
trafficking
conviction, as a single prior sentence, consistent with Davis.

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adequately

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presented

in

the

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materials

before

this

court

and

argument would not aid the decisional process.
AFFIRMED

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